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Exhibit 10(xi)(a)
FanZ Enterprises, Inc.
Shares
Common Stock
($0.01 par value)
Form of Broker/Dealer Agreement
___________, 2001
[BROKER NAME]
[ADDRESS]
[CITY, STATE, ZIP]
Ladies and Gentlemen:
FanZ Enterprises, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell a minimum of 1,000,000 shares of its
common stock, $.01 par value per share ("Common Stock") and up to 2,500,000
shares of its Common Stock (said shares to be issued and sold by the Company
being hereinafter called the "Securities") in a public offering which is the
subject of a registration statement on Form SB-2. The Company intends to sell
the Securities to the public by itself except in those states identified on
Annex A hereto where a licensed broker/dealer is required for the sale of the
Company's Securities. You ("Broker") agree to facilitate the sale of the
Company's Securities to residents of those states identified on Annex A hereto.
Certain terms used herein are defined in Section 17 hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Broker as set forth below in
this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 333-58492) on Form SB-2, including a
related preliminary prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may file one or more
amendments thereto, including a related preliminary prospectus, each of
which will be furnished to you. The Company will next file with the
Commission either (1) prior to the Effective Date of such registration
statement, a further amendment to such registration statement (including
the form of final prospectus) or (2) after the Effective Date of such
registration statement, a final prospectus in accordance with Rules 430A
and 424(b). In the case of clause (2), the Company will include in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the
Prospectus. As filed, such amendment and form of final prospectus, or
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such final prospectus, shall contain all Rule 430A Information, together
with all other such required information.
(b) On the Effective Date, the Registration Statement will, and when
the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date (as defined herein) and on any date on which the
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the Act
and the rules thereunder; on the Effective Date and at the Execution Time,
the Registration Statement will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading, and, on the Effective Date, the Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of the
Broker specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized with full corporate
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification.
(d) All the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus, all
outstanding shares of capital stock of the subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries free and clear
of any perfected security interest or any other security interests, claims,
liens or encumbrances.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the
outstanding shares of Common Stock have been duly and validly authorized
and issued and are fully paid and nonassessable; the Securities have been
duly and validly authorized, and, when issued and delivered to and paid for
by the investors, will be fully paid and nonassessable; and, except as set
forth in the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to
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convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding.
(f) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(g) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(h) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Broker in the manner contemplated herein and in the
Prospectus.
(i) The Company has complied with all state blue sky laws and has made
the appropriate filings to sell the Securities in those states identified
on Annex A hereto.
(j) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, (i) the charter or
by- laws of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties.
(k) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(l) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with
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generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The
pro forma financial statements included in the Prospectus and the
Registration Statement include assumptions that provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to the
historical financial statement amounts in the pro forma financial
statements included in the Prospectus and the Registration Statement. The
pro forma financial statements included in the Prospectus and the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X under the Act and the
pro forma adjustments have been properly applied to the historical amounts
in the compilation of those statements.
(m) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(n) The Company has not taken, directly or indirectly, any action that
has constituted or that was designed to or might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
2. REPRESENTATIONS AND WARRANTIES OF THE BROKER. The Broker represents
and warrants to, and agrees with, the Company as set forth below in this Section
2.
(a) This Agreement has been duly authorized, executed and delivered by
the Broker and constitutes a valid and binding obligation of the Broker
enforceable in accordance with its terms.
(b) The Broker is registered and/or a member in good standing with the
Commission, the National Association of Securities Dealers, Inc. ("NASD"),
and is licensed or will, at the time of any sale of Securities, be licensed
as a broker/dealer in each of the states identified on Annex A hereto.
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(c) The Broker has reviewed and is familiar with all regulations
relating to the distribution and delivery of preliminary and final
prospectuses including, but not limited to, the Act and the Exchange Act.
(d) The Broker is bonded in accordance with all federal, state and NASD
requirements.
(e) The Broker is not the subject of any state, federal or local
action, suit or investigation that would prevent or impair the Broker from
performing its obligations and duties under this Agreement.
3. PURCHASE AND SALE.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell
through the Broker and the Broker agrees to use its best efforts to sell on
behalf of the Company, at a purchase price of $10.00 per share, the
Securities to residents in the states identified on Annex A hereto.
Notwithstanding the foregoing, the Company reserves the right to refuse to
sell Securities to any person at any time. The Company hereby agrees to pay
the Broker a commission equal to five percent (5%) of the money raised
from the sale of the Company's Common Stock in those states listed on
Annex A hereto. These commissions will only be paid once a minimum of
1,000,000 Securities has been sold.
(b) In the event that the Broker earns less than One Hundred Forty
Thousand Dollars ($140,000) in commissions (assuming the sale of between
1,000,000 and 2,499,999 shares of the Company's Common Stock are sold) or
One Hundred Ninety Thousand Dollars ($190,000) in commissions (assuming
that all 2,500,000 shares of the Company's Common Stock are sold) the
Broker shall waive his right to commissions and receive a fixed consulting
fee (the "Consulting Fee"). The Consulting Fee shall equal One Hundred
Forty Thousand Dollars ($140,000) (assuming the sale of between 1,000,000
and 2,499,999 shares of the Company's Common Stock are sold) or One
Hundred Ninety Thousand Dollars ($190,000) (assuming that all 2,500,000
shares of the Company's Common Stock are sold). The Consulting Fee shall
be for services provided by the Broker including (i) registration as a
broker/dealer in those states listed on Annex A; (ii) due diligence; (iii)
consultation with the Company on the construction of its website; (iv)
consultation with the officers of the Company on the sales process; and
(v) attendance at selected venues in those states listed on Annex A.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
shall be made at 10:00 AM, New York City time, on the date the Company breaks
escrow and thereafter upon receipt of subscription materials and payment.
Delivery of the Securities shall be made to the clients of the Broker against
payment.
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5. OFFERING BY BROKER. It is understood that the Broker proposes to
offer the Securities for sale on behalf of the Company to the public in the
states identified on Annex A hereto as set forth in the Prospectus.
6. COVENANTS.
(a) The Company covenants and agrees with the Broker that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and any
amendment thereof, to become effective. Prior to the termination of the
offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished the
Broker a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has
become or becomes effective pursuant to Rule 430A, or filing of the
Prospectus is otherwise required under Rule 424(b), the Company will
cause the Prospectus, properly completed, and any supplement thereto to
be filed with the Commission pursuant to the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide evidence
satisfactory to the Broker of such timely filing. The Company will
promptly advise the Broker (1) when the Registration Statement shall
have become effective, (2) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement
shall have been filed with the Commission, (3) when, prior to
termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, (4)
of any request by the Commission or its staff for any amendment of the
Registration Statement, or any Rule 462(b) Registration Statement, or
for any supplement to the Prospectus or for any additional information,
(5) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (6) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose.
(ii) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it shall
be necessary to amend the Registration Statement or supplement the
Prospectus to comply with the Act or the rules
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thereunder, the Company promptly will (1) notify the Broker of any such
event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a)(i) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect such
compliance; and (3) supply any supplemented Prospectus to you in such
quantities as you may reasonably request.
(iii) The Company will furnish to the Broker copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by the Broker may be required by the Act, as
many copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Broker may reasonably request.
(iv) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably
be expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(v) The Company will use its best efforts to have its Common
Stock traded on the OTC Bulletin Board.
(b) The Broker covenants and agrees with the Company that:
(i) The Broker will only sell on behalf of the Company to
investors who are residents in the states identified on Exhibit A
hereto.
(ii) During the course of the offering, the Broker will not
make any untrue statement of a material fact or omit to state a
material fact required to be stated or necessary to make any statement
made not misleading concerning the offering.
(iii) The Broker will take all actions necessary to fulfill
its duties under the Act, the Exchange Act, the rules of the NASD and
applicable state "blue sky laws" in connection with the offering of the
Company's Securities, including, without limitation, prospectus
delivery requirements and bonding requirements.
(iv) During the course of the offering, the Broker will comply
with all company policies regarding the sale of securities so long as
such policies are not inconsistent with any federal, state or NASD
requirements.
(v) The Broker shall promptly notify the Company of any
action, or threatened action, to revoke, deny or suspend any license
required by it to sell Securities. The Broker shall promptly notify the
Company of any investigation which could reasonably result in the
revocation, denial, or suspension of any such licenses or which could
prevent or impair the Broker from performing its obligations under this
Agreement.
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7. CONDITIONS TO THE OBLIGATION OF THE BROKER. The obligation of the
Broker to sell the Securities on behalf of the Company shall be subject to the
satisfaction of the following conditions:
(a) Each of the representations and warranties of the Company set forth
in this Agreement shall be true and correct as of the Execution Time, the
Closing Date and any settlement date pursuant to Section 4 hereof and the
Company shall have delivered to the Broker a certificate signed by an
executive officer of the Company, stating that this condition has been
satisfied.
(b) The Broker shall have received from Benesch, Friedlander, Coplan &
Aronoff LLP, legal counsel to the Company, a written opinion dated as of
the Execution Time, addressed to the Board of Directors of the Broker in
form and substance reasonably satisfactory to the Broker, addressing legal
matters typical to those contemplated by this Agreement.
(c) Each of the statements made in the officer's certificate described
in Section 7(a) above shall be true and correct as of the Execution Time,
the Closing Date and any settlement date pursuant to Section 4 hereof.
(d) The Company shall have furnished to the Broker such further
information, certificates and documents as the Broker may reasonably
request.
(e) The Registration Statement, and any amendment or amendments
thereto, has become effective.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Broker, the
directors, officers, employees and agents of the Broker and each person who
controls any Broker within the meaning of either the Act or the Exchange Act
(collectively, the "Broker Indemnitees") against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action. The
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Company shall, upon breaking escrow for the sale of a minimum of 1,000,000
shares of the Company's Common Stock, purchase Directors' and Officers'
Insurance which shall cover the Broker Indemnitees for any actions taken on
behalf of the Company. Notwithstanding the foregoing, the Company will not be
liable in any case to the extent that any such loss, claim, damage or liability
arises out of the gross negligence or willful misconduct of the Broker. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Promptly after receipt by a Broker Indemnitee under this Section 8 of
notice of the commencement of any action, such Broker Indemnitee will, if a
claim in respect thereof is to be made against the Company under this Section 8,
notify the Company in writing of the commencement thereof; but the failure so to
notify the Company (i) will not relieve it from liability under paragraph (a)
above unless and to the extent it did not otherwise learn of such action and
such failure results in the forfeiture by the Company of substantial rights and
defenses and (ii) will not, in any event, relieve the Company from any
obligations to a Broker Indemnitee other than the indemnification obligation
provided in paragraph (a) above. The Company shall be entitled to appoint
counsel of the Company's choice at the Company's expense to represent a Broker
Indemnitee in any action for which indemnification is sought (in which case the
Company shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the Broker Indemnitee or parties except as set
forth below); PROVIDED, HOWEVER, that such counsel shall be satisfactory to the
Broker Indemnitee. Notwithstanding the Company's election to appoint counsel to
represent the Broker Indemnitee in an action, the Broker Indemnitee shall have
the right to employ separate counsel (including local counsel), and the Company
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the Company to represent the Broker Indemnitee
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the Broker
Indemnitee and the Company and the Broker Indemnitee shall have reasonably
concluded that there may be legal defenses available to it and/or other Broker
Indemnitiee(s) which are different from or additional to those available to the
Company, (iii) the Company shall not have employed counsel satisfactory to the
Company to represent the Broker Indemnitee within a reasonable time after notice
of the institution of such action or (iv) the Company shall authorize the Broker
Indemnitee to employ separate counsel at the expense of the Company.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Broker set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Broker or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 8 and 9 hereof shall survive the termination or
cancellation of this Agreement.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the parties at the addresses
identified on the signature page hereto.
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11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
12. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of Illinois applicable to contracts made
and to be performed within the State of Illinois.
13. JURISDICTION; CONSENT TO SERVICE OF PROCESS.
(a) Each party hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the United States
District for the Northern District of Illinois (the "ILLINOIS COURT"), and
any appellate court from such court, in any suit, action or proceeding
arising out of or relating to this Agreement, or for recognition or
enforcement of any judgment resulting from any such suit, action or
proceeding, and each party hereby irrevocably and unconditionally agrees
that all claims in respect of any such suit, action or proceeding may be
heard and determined in the Illinois Court.
(b) It will be a condition precedent to each party's right to bring any
such suit, action or proceeding that such suit, action or proceeding, in
the first instance, be brought in the Illinois Court (unless such suit,
action or proceeding is brought solely to obtain discovery or to enforce a
judgment), and if such court refuses to accept jurisdiction with respect
thereto, such suit, action or proceeding may be brought in any other court
with jurisdiction; provided that the foregoing will not apply to any suit,
action or other proceeding by a party seeking indemnification or
contribution pursuant to this Agreement or otherwise in respect of a suit,
action or proceeding against such party by a third party if such suit,
action or proceeding by such party seeking indemnification or contribution
is brought in the same court as the suit, action or proceeding against such
party.
(c) No party may move to (i) transfer any such suit, action or
proceeding from the Illinois Court to another jurisdiction, (ii)
consolidate any such suit, action or proceeding brought in the Illinois
court with a suit, action or proceeding in another jurisdiction, or (iii)
dismiss any such suit, action or proceeding brought in the Illinois Court
for the purpose of bringing the same in another jurisdiction.
(d) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, (i) any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in the
Illinois Court, (ii) the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court, and (iii)
the right to object, with respect to such
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suit, action or proceeding, that such court does not have jurisdiction over
such party. Each party irrevocably consents to service of process in any
manner permitted by law.
14. EXPENSES. The Company will reimburse the Broker for all
reasonable out-of- pocket expenses (the "Expenses") incurred by the Broker in
connection with the sale of the Securities up to a maximum of Ten Thousand
Dollars ($10,000) and subject to receipt by the Company of appropriate
documentation of the Expenses. These Expenses may include legal expenses of the
Broker's counsel, which shall not exceed Five Thousand Dollars ($5,000).
15. COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post- effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in paragraph l(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
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"Prospectus" shall mean the prospectus relating to the Securities that
is first filed pursuant to Rule 424(b) after the Execution Time or, if no
filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1 (a) above, including exhibits and financial statements,
as amended at the Execution Time (or, if not effective at the Execution
Time, in the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the Broker.
Very truly yours,
FANZ ENTERPRISES, INC.
By:
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Name: Frederick L. McDonald II
Title: President
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The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[BROKER NAME]
By: ________________________________
Name: ______________________________
Title: _____________________________
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ANNEX A
States
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1. Arizona
2. Florida
3. North Carolina
4. Texas